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Wednesday, March 26, 2014

Does the IPAB have the Power to Review its Own Decisions?

The provision that vests the Intellectual Property Appellate Board
(IPAB) with the powers of a civil court is Section 92 of the Trademarks Act,
which is reproduced below:

92. Procedure and powers of Appellate Board.-

(1) The Appellate Board shall not be bound by the procedure laid
down in the Code of Civil Procedure, 1908 (5 of 1908 ) but shall be guided by
principles of natural justice and subject to the provisions of this Act and the
rules made thereunder, the Appellate Board shall have powers to regulate its
own procedure including the fixing of places and times of its hearing.

(2) The Appellate Board shall have, for the purpose of discharging
its functions under this Act, the same powers as are vested in a civil court
under the Code of Civil Procedure, 1908 (5 of 1908 ) while trying a suit in
respect of the following matters, namely:-

(a) receiving evidence;

(b) issuing commissions for examination of witnesses;

(c) requisitioning any public record; and

(d) any other matter which may be prescribed.

(3) Any proceeding before the Appellate Board shall be deemed to be
a judicial proceeding within the meaning of sections 193 and 228, and for the
purpose of section 196, of the Indian Penal Code (45 of 1860 ), and the
Appellate Board shall be deemed to b a civil court for all the purposes of
section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974
).

This provision is largely identical to Section 77 of the Patents Act and Section 127 of the Trademarks Act. However, the power of review is
conspicuous by its absence. Can it be argued that the power of review is an
inherent one?

This issue was addressed in the IPAB’s order no. 134/2009 dated
August 21, 2009 in OA/1 /2007/PT/CH. In this decision, the IPAB held that since the Board was the creation of a statute, it could not
vest itself with powers of substantive review unless the statute expressly
provided for it. The power of procedural review, however, being ancillary to
its function, was inherent in it. To support this, the Board cited a few
decisions of the Supreme Court, the Grindlaysdecision
being a prominent one.

Reproduced below is the relevant extract from the Grindlays decision:

The decision inNarshi Thakershi v. Pradyumansinghjiis
distinguishable. It is an authority for the proposition that the power of
review is not an inherent power, it must be conferred either specifically or by
necessary implication. Sub-sections (1) and (3) of s. 11 of the Act themselves
make a distinction between procedure and powers of the Tribunal under the Act.
While the procedure is left to be devised by the Tribunal to suit carrying out
its functions under the Act, the powers of civil court conferred upon it are
clearly defined. The question whether a party must be heard before it is
proceeded against is one of procedure and not of power in the sense in which the
words are used in s. 11. The answer to the question is, therefore, to be found
in sub-s. (1) of s. 11 and not in sub-s. (3) of s. 11. Furthermore, different
considerations arise on review. The expression 'review' is used in two distinct
senses, namely (1) a procedural review which is either inherent or implied in a
court or Tribunal to set aside a palpably erroneous order passed under a
misapprehension by it, and (2) a review on merits when the error sought to be
corrected is one of law and is apparent on the face of the record. It is in the
latter sense that the Court in Narshi Thakershi's case held that no review lies
on merits unless a status specifically provides for it.